In recent years, momentum for policies that aim to help level the playing field for job candidacy has surged. The U.S. Equal Employment Opportunity Commission (EEOC) is an organization that is responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person’s race, color, religion, sex, national origin, age, disability, or genetic information. In 2012, the EEOC added a recommendation that employers ‘Ban the Box’ in its 2012 “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment.”1 The EECO’s recommendation has translated to 35 states, the District of Columbia and over 150 cities and counties adopting a ‘Ban the Box’ or fair-chance policy. Thus, the adaptation of ‘Ban the Box’ laws has resulted in revised hiring processes and created a more complex legal climate for organizations in jurisdictions where such policies have been implemented.
‘Ban the Box’ is a generic term used for a law or regulation that prohibits an employer from inquiring about an applicant’s criminal history on an employment application. In certain jurisdictions, the regulation denotes a time delay in which an employer is barred from inquiring about criminal records until further in the hiring process. In turn, ‘Ban the Box’ laws delay questions about the criminal history of applicants until later in the hiring process by removing the box on applications that requests applicants to mark if they have a past criminal record. These laws are aimed to give ex-offenders a chance to show their abilities and skills that are applicable to a job and not reduce their chances of consideration due to a criminal history.
With over three-fourths of the U.S. population residing within a jurisdiction with a form of ‘Ban the Box’ or Fair-Chance policy2, the hiring processes for employers must change to ensure compliance. This results in an added dilemma for HR and hiring managers, whom are left to balance giving applicants with a criminal record a fair chance at employment and potentially being held liable for negligent hiring. While Banning the Box only delays records-related inquiries, those in opposition raise prominent concerns regarding the safety of businesses, its employees, and customers. However, employers may have inflated views regarding the risks such employees pose, as employment is a strong deterrent to recidivism.
Due to the fact ‘Ban the Box’ laws vary greatly based on jurisdiction, companies should seek legal counsel to ensure compliance standards are met. In New Jersey, the Act prohibits covered employers from requiring an applicant to complete any application that inquires about ones’ criminal history during the initial employment application process. Thus, employers can make this inquiry only after the initial employment application has been completed. However, New York City has one of the nation’s most comprehensive ‘Ban the Box’ laws and includes eight key provisions. It is because of this that employers with a consolidated hiring process used in various jurisdictions must carefully review the final regulations to ensure ones hiring process does not constitute a per se violation of the FCA.3
About the Author:
Jay V. Surgent is a Partner at Weiner Law Group LLP. Mr. Surgent is known for his work in the area of white collar criminal defense, and often handles high-profile matters which receive local, state, and national media attention. He has extensive experience in federal, state and administrative courts defending individual and corporate clients who have been investigated or charged with criminal, civil, or administrative and regulatory offenses. Mr. Surgent has successfully defended clients against such allegations as securities fraud, kick-back schemes, political corruption, bribery, organized crime, illegal gambling, consumer fraud, fraudulent healthcare claims, theft, kidnapping, murder, manslaughter, sex offenses, and other crimes of violence as well as possessory and distribution drug charges on the federal and state defense levels. In addition, Mr. Surgent has extensively argued appeals in various appellate courts, and has also appeared in federal courts defending clients throughout the country on a whole variety of criminal cases. Mr. Surgent has appeared as a commentator on TruTV, formerly known as CourtTV, and has appeared on Fox News concerning his work as a criminal defense attorney regarding Federal and State criminal matters.
1 Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964. (n.d.). Retrieved June 25, 2019, from https://www.eeoc.gov/laws/guidance/arrest_conviction.cfm